Mr. Rajul Shrivastav, Advocate (DHCLSC) with Ms. Monisha Handa and Mr. Chaudhary, Arnav Advocates v. UNION OF INDIA & ORS

26.10.2017 the learned trial court had dismissed the suit filed by the appellant (plaintiff) seeking declaration, mandatory injunction and recovery of Rs. 2,80,250/- (including Rs.90,250/- as interest)

2. The present second appeal was initially accompanied by an application bearing CMI No. 11/2019 filed under Order XLIV CPC seeking to pursue the appeal as an indigent person, which application was allowed after due verification vide order dated 06.07.2023; whereafter however, the second appeal was erroneously registered as a first appeal bearing RFA No. 707/2023; which error was corrected vide order dated 29.11.2024 and the matter then came to be registered as RSA No.206/2024.

3. At the outset, this court considers it necessary to record that the appellant before this court is about 72 years of age, and appears to be of infirm health. As would be seen from what follows, the appellant had filed the suit in relation to the termination of his service in 1999 by respondent No.1, which suit came to be dismissed by the learned trial court in 2017; and the first appeal filed against such dismissal was itself dismissed in 2019. Thereafter, the appellant had filed an indigent application in 2019, which was allowed in 2023; after which his appeal got registered as a regular first appeal, which error came to be corrected in 2024. In the circumstances and in order to allay his grievance as to the delay in deciding his case, which has been very vociferously canvassed by the appellant, this court has considered the matter more holistically. Signature Not Verified Signed By:ANJALI KAUSHIK Signing Date:15.05.2025 14:42:58 RSA 206/2024

4. The court has heard Mr. Rajul Shrivastav and Ms. Monisha Handa, learned counsel appearing for the appellant; and Mr. H.L. Tiku, learned senior counsel appearing for the main contesting parties, viz. respondent No. 3/Apeejay School of Marketing/Management and respondent No. 4/Apeejay Education Society at length on the aspect of framing substantial questions of law in the present proceedings. BRIEF FACTS

5. The relevant facts that are necessary to decide the present second appeal are set-out below : 5.1. The appellant joined the services of respondent No. 3 institution on 02.06.1997 at the post of Deputy Registrar, initially on probation for a period of 01 year, which services were confirmed vide Office Order No. 09/98 dated 19.06.1998 with effect from 02.06.1998.

5.2. Subsequently, the Government of India recommended the implementation recommendations of the 5th Pay Commission, which were pay-scales revised adopted by the respondent No. 3 only on 20.04.1999 and were implemented by them with effect from 01.01.1999.

5.3. On 30.09.1999 the appellant‟s services were terminated by respondent No.3, and as per the terms of his appointment, he was given 03 months‟ salary in lieu of notice period. The relevant portion of the termination letter is extracted below : “This is to inform you that your services are no longer required by the Institute. It is, therefore, decided to give 3 months salary in lieu of notice period as per terms of appointment. Signature Not Verified Signed By:ANJALI KAUSHIK Signing Date:15.05.2025 14:42:58 RSA 206/2024 You are further informed to hand-over charge to the Registrar forthwith. You are deemed to have been relieved with effect from 30.09.1999 afternoon. Cheque Number 860398 dated 30.09.1999 for Rs. 78,774/- being three months salary is enclosed.”

5.4. Consequently, the appellant filed the present suit seeking declaration, mandatory injunction recovery Rs.2,80,250/- (Rs.1,90,000/- as principal amount along with Rs.90,250/- as interest accrued thereon as on 28.02.2020) setting-out the following claims in his suit : “a) Pass a declaratory decree, inter-alia, declaring that the termination of the plaintiff vide letter dated 30.9.1999 is bad in law. “b) Pass a decree of Mandatory Injunction directing the Defendants to reinstate the plaintiff with full back wages. “c) Pass a decree for recovery of a sum of about Rs. 2,80,250.00 (Rupees Two Lacs Eighty Thousand Two Hundred and Fifty only) being the Principle amount alongwith interest accrued thereon. “d) Pass a decree of pendent-lite interest @ 24% per annum on the principle amount of Rs. 1,90,000.00 (Rupees One Lac and Ninety Thousand only) from the date of filing of the instant suit sill the realization of the instant suit. “In the alternative pass a decree of Mandatory Injunction against the Defendants No. 1 and 2 directing them to conduct an enquiry into the matter and in case any irregularity is found and detected therein, direct the Defendants No.1 and 2 to withdraw the accreditation granted to the Defendant No.3. “e) * * * * * ” Signature Not Verified Signed By:ANJALI KAUSHIK Signing Date:15.05.2025 14:42:58 RSA 206/2024

6. In the memorandum of appeal, the appellant has proposed the APPELLANT’S SUBMISSIONS following substantial questions of law : “1. Whether the law of natural justice is applied on employee of government service only or it applies to the employee of private sector also.

2. Whether the court below rightly decide the case of appellant/plaintiff on the basis or evidence presented by both the parties in the cases.

3. Whether the court below rightly decide the case and dismissed suit and first appeal, where terminating the employment of appellant/plaintiff was, without serving any so cause notice.”

7. The primary contention raised by the appellant is that the principles of natural justice have not been followed by the respondents while terminating his services. It is argued that no show-cause notice was issued to him prior to his termination; and the termination letter issued by respondent No.3 institution contains no grounds for his termination. Moreover, it is argued that contrary to the principles of natural justice, the appellant was not afforded an opportunity of personal hearing. In support of this contention the appellant has placed reliance on the decision of the Supreme Court in Union of India vs. Madhusudan Prasad.1

8. The appellant has strenuously contended that his termination was in the nature of a „punishment‟, since he had demanded implementation of the recommendations of the 5th Pay Commission from 01.01.1996 as mandated by law; however, those recommendations were 1 (2004) 1 SCC 43 Signature Not Verified Signed By:ANJALI KAUSHIK Signing Date:15.05.2025 14:42:58 RSA 206/2024 implemented only with effect from 01.01.1999. It has been further submitted that the learned trial court and the learned first appellate court have both failed to appreciate that the appellant was terminated „without cause‟, ignoring the Annual Confidential Reports dated

26.05.1998 and 19.06.1998, which had assessed the appellant‟s work as good/very good; and his confirmation letter dated 02.06.1998; as also the fact that vidé letter dated 21.06.1999 an annual increment had been recommended for the appellant.

9. It has been submitted that the courts below have erroneously relied upon Clauses 21 and 22 of the Service Rules of the respondent institution, without appreciating that a copy of those rules was neither made accessible to the employees nor were the aforementioned clauses included in the appellant‟s appointment letter nor were they referred to in his termination letter.

10. Accordingly, it has been argued that the appellant‟s termination was arbitrary, illegal, and in violation of the principles of natural justice. RESPONDENTS’ SUBMISSIONS

11. Respondents Nos. 3 and 4 have contested the present appeal on the following main grounds : 11.1. It has been submitted on behalf of respondents Nos. 3 and 4 that respondent No. 3 institute is a private, unaided institution that offers technical courses, though it is approved by the All India Council for Technical Education („AICTE‟). It is argued that the appellant is neither a „public servant‟ nor is he a „workman‟ within the meaning of the Industrial Disputes Act, 1947; and respondent No. 3 is not a statutory body; and Signature Not Verified Signed By:ANJALI KAUSHIK Signing Date:15.05.2025 14:42:58 RSA 206/2024 therefore, the appellant does not enjoy any kind of security of tenure or service.

11.2. It is contended that the prayers in the suit were barred in view of section 14(1)(c) of the Specific Relief Act, 1963 since by way thereof the appellant (plaintiff) was in effect seeking specific performance of a „contract of personal service‟, which is not tenable in law.

11.3. It has also been submitted that it is settled law, that the first appellate court is the final court to decide questions of facts; and pure findings of fact are not amenable to challenge in a second appeal before the High Court. In this context, the respondents have pointed-out that the appellant had accepted the terms of his appointment as well as his termination by way of the termination letter, and had also enchased the 03 months‟ salary in lieu of notice period that was given to him. Attention of this court has been drawn to Rule 21 of the Service, Leave & Conduct Rules of respondent No. 3 institute (which were duly proved as Ex. PW 1/11 in the course of trial), which reads as follows :

21. The services of a permanent employee may be terminated by either side without assigning any reasons by giving three months‟ notice or three months‟ salary in lieu thereof.

11.4. It has been further submitted that there was no legal mandate for private, unaided institutions recommendations of the 5th Pay Commission w.e.f. 01.01.1996; implement that the appellant was unable to show any circular issued by Signature Not Verified Signed By:ANJALI KAUSHIK Signing Date:15.05.2025 14:42:58 RSA 206/2024 respondent No. 2/AICTE to that effect; and that it is not disputed that the respondent No.3 institution implemented those recommendation w.e.f. 01.01.1999 and the benefits of implementation from that date have been duly paid to the appellant till the date of termination of his services.

11.5. Moreover, it has been contended that in any case, the appellant‟s claim for arrears of the 5th Pay Commission scales from 02.06.1997 till 31.12.1998 was time-barred, since that claim ought to have been filed by 30.12.2001 (i.e., within 03 years) but the suit came to be filed only on 26.03.2002, which was beyond the period of limitation insofar as the said claim is concerned.

11.6. It has accordingly been submitted, that no question of law, muchless any substantial question of law, has been shown to arise in the present second appeal; and the appeal deserves to be dismissed with costs. DISCUSSION & CONCLUSIONS

12. It is settled law that section 100 CPC confers jurisdiction on the High Court to entertain a second appeal only when it is satisfied that the case involves a substantial question of law. In Suresh Lataruji Ramteke vs. Sumanbai Pandurang Petkar & Ors, 2 the scope of interference by a High Court in a second appeal has been enunciated as follows : 2 (2023) 17 SCC 624 Signature Not Verified Signed By:ANJALI KAUSHIK Signing Date:15.05.2025 14:42:58 RSA 206/2024 “12. The jurisprudence on Section 100 CPC is rich and varied. Time and again this Court in numerous judgments has laid down, distilled and further clarified the requirements that must necessarily be met in order for a second appeal as laid down therein, to be maintainable, and thereafter be adjudicated upon. Considering the fact that numerous cases are filed before this Court which hinge on the application of this provision, we find it necessary to reiterate the principles. “13. The requirement, most fundamental under this section is the presence and framing of a “substantial question of law”. In other words, the existence of such a question is sine qua non for exercise of this jurisdiction. [Panchugopal Barua v. Umesh Chandra Goswami, (1997) 4 SCC 713 (two-Judge Bench)] “14. The jurisdiction under this section has been described by this Court in Gurdev Kaur v. Kaki [Gurdev Kaur v. Kaki, (2007) 1 SCC 546] (two-Judge Bench) stating that post 1976 amendment, the scope of Section 100 CPC stands drastically curtailed and narrowed down to be restrictive in nature. The High Court's jurisdiction of interfering under Section 100 CPC is only in a case where substantial questions of law are involved, also clearly formulated/set out in the memorandum of appeal. It has been observed that : (SCC p. 564, para 70) “70. … At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as “substantial question of law” which is indicative of intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become “third trial on facts” or “one more dice in the gamble”. The effect of the amendment mainly, according to the amended section, was: legislative (i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved; Signature Not Verified Signed By:ANJALI KAUSHIK Signing Date:15.05.2025 14:42:58 RSA 206/2024 (ii) The substantial question of law to precisely state such question; (iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal; (iv) Another part of the section is that the appeal shall be heard only on that question.”